President Bush Issues Executive Order Regarding Eminent Domain

by Timothy Sandefur

President Bush today issued an executive order which requires the Attorney General to monitor condemnations undertaken by federal departments and agencies, and to ensure that they comply with the following policy statement:

It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

Since virtually all economic development condemnations are done by state governments, and the Kelo case involved a condemnation by state and local officials, it’s highly doubtful that this executive order will mean anything.

In addition, the order says that takings must not be committed for purposes of advancing the economic interests of private parties—but the theory behind Kelo style takings is that such takings benefit society in general. Even the Kelo case itself says that government can’t take property for purely private use; it just goes on to say that virtually anything that arguably is good for society qualifies as a public use. Without addressing that issue, things like this order will do very little to solve the problem. Still, it’s gratifying to see the President take an interest in this issue. You may recall that the President didn’t file a brief in the Kelo case.